About Yo Dunn

Yo blogs about social care, law and autism. She is a trainer and consultant who works across the public sector (primarily in social care and education), specialising in autism, legal frameworks and intersecting areas. More information at: www.consultyo.com and www.linkedin.com/pub/yo-dunn/3b/a6b/284. Yo has an academic background in social policy analysis and her doctorate is in educational research. She is autistic and a self-confessed legal geek. She is an experienced and well-reviewed public speaker and deeply involved in the adult autistic self-advocate community.

Any law firm representing a local authority at SEN tribunal who might feel inclined to gloat over yet another recent win against parents in the field of SEN law might want to think twice. Not only because the SEN system should not be about ‘winning’ and ‘losing’ (see the storm of condemnation that Baker Small attracted following its recent inappropriate tweet), but also because of the Care Act.

At first sight the case of Staffordshire County Council v JM [2016] seems like a potential money saver for local authorities and very depressing for young adults with Special Educational Needs, their parents and advocates. The parents of H, a 21 year old young woman with an EHC Plan, had won their appeal at the First Tier Tribunal (SENDIST) who had required the council to provide transport to and from the educational placement named in the plan. However, the council appealed to the Upper Tribunal and the Upper Tribunal’s judgement makes quite devastating reading from the parent’s point of view.

Firstly, it was held that SEN tribunals can’t find transport (for those of any age) to be either a special educational need (on the basis of the wording of the statute which specifies that these must ‘arise from a learning difficulty’) or special educational provision (since extensive previous case law had established that a journey cannot be part of educational provision).

Now this isn’t too much of a problem for young people of compulsory school age since there is an extensive separate transport duty under Schedule 35 of the Education Act 1996. Despite the ‘raising of the school leaving age’, those of sixth form age form yet another category of their own which I will not address here.

However, for adult learners (those beyond sixth form age) the situation is entirely different from that of both the younger two groups. The Education Act duty regarding transport for this group is to be found in s.508F Education Act 1996 (as amended by Children and Families Act 2014). But, as the upper tribunal pointed out in its second blow for parents, this is outside the jurisdiction of SENDIST anyway so cannot be challenged through the tribunal system and remedy in respect of issues around transport can only be sought through judicial review.

To further compound the depression of parents, the upper tribunal nevertheless went on to consider whether a council was compelled by the s.508F duty to provide transport for those with EHC Plans in this age group. They concluded that it does not create a free standing rule that transport for those with exceptional needs must be included in an EHC Plan. They also pointed out that the duty itself is very weak in terms of specific duties owed to an individual. This is because it is a general duty. It doesn’t say “if they consider it necessary in the particular case” , it says that councils must make such arrangements for transport “as they consider necessary” “to facilitate the attendance of adults receiving education” …

So far so depressing for parents, and, potentially, money saving for councils. However, this is the point at which all those concerned with Education Law would do well to stand back and consider adult social care law.

We can only speculate as to the detailed facts underlying this case (as the full judgement does not contain any details of H’s needs). However, under the Care Act, it seems very likely that a young person in this position would meet at least two eligibility criteria: of being “unable” (remembering the broad definition of “unable”) to achieve the outcomes of “accessing and engaging in work, training, education or volunteering” and “making use of necessary facilities or services in the local community including public transport, and recreational facilities or services”. These would be having a consequential significant impact on the young person’s wellbeing, at the very least in terms of “participation in work, education, training or recreation” (s.1 Wellbeing definition). Therefore, councils with young people aged 19 to 25 with EHC Plans should be assessing their social care needs under s.9 Care Act and considering carefully whether they need to provide transport under s.18 Care Act in order to meet a young person’s eligible social care needs. This would seem to offer a more fruitful option for resolving what would otherwise be a startling and problematic gap in the legal framework around meeting the needs of those of this age group accessing educational placements named in EHC Plans.

As those working in social care will know, care providers and councils are already overwhelmed and struggling to ensure lawful authorisation of all care situations involving Deprivations of Liberty following the broadening of the definition of ‘Deprivation of Liberty’ by the decision of the Supreme Court in Cheshire West. The current situation is so bad that four councils are seeking a judicial review of Government funding for DoLS.

The Cheshire West decision was important and revolutionary for disability equality, establishing that disabled people are entitled to the same rights as everyone else and should not have their liberty infringed without careful, independent review and legal recourse, no matter how ‘normal’ and pleasant the circumstances of their care. Legally speaking (Storck 43 EHRR 96) there are 3 components which are required for a situation to require formal legal authorisation in order to comply with Article 5 ECHR. These are: (a) the objective component of confinement in a particular restricted place for a not negligible length of time; (b) the subjective component of lack of valid consent; and (c) the attribution of responsibility to the state.

In situations involving those who lack capacity to consent, requirement (b) is satisfied. Cheshire West widened the scope of situations which now meet (a). And now, in a recent case, the scope of (c) has been called into question.

In Staffordshire County Council v SRK & Anor[2016], Mr. Justice Charles considered whether, when someone’s liberty is removed in the course of a privately funded care package in the client’s own home (in circumstances which met the criteria for (a) and (b)) the Deprivation of Liberty is imputable to the state. The full judgement is extremely complex and examines the issue in depth. For practitioners and councils, the important information is that he concluded that, under certain circumstances such “private” situations are imputable to the state. This means that providers should be informing councils of the situation and either or both of the provider or the council should be applying to the Court of Protection for a welfare order.

In this case it was held that the involvement of the courts in awarding Personal Injury damages and the Court of Protection itself in appointing a deputy to administer those damages was a sufficiently active form of state involvement to create a responsibility on the state (through its positive duty to seek to uphold the Right to Liberty) to require the state to seek legal authority for the detention.

He clearly indicated that this judgement would apply to all future cases in this class and that future personal injury damages awards should take account of the additional costs involved in seeking Welfare Orders in similar cases.

In coming to this conclusion, he pointed out that “in a number of such cases P may well may not have the support of family or friends who take an active role and interest in P’s care and life.” (paras 71 & 72) and, therefore, it falls to the state to ensure that the rights of the individual are protected.

This case widens still further the circumstances under which a deprivation of liberty is imputable to the state and, thus, outside of a Care Home or Hospital, requires authorisation by the Court of Protection. Estimates contained in the judgement suggest that the result will be at least an additional 250-300 cases requiring welfare orders.

However, this is unlikely to be an end to knock-on consequences of the application of the Cheshire West decision in practice.

In pre-Cheshire West case law, Re A and Re C [2010] EWHC 978 (Fam) 64, it had been established that care circumstances created by a family within their own home were not imputable to the state. However, it is difficult to see how this case does not raise the possibility or even probability that the ultimate result in an equivalent case might now be different. The continuing application of Cheshire West in practice seems destined to reduce to the level of mere awareness the role of the state which is sufficient to render objective circumstances which deprive someone of their liberty imputable to the state and thus a potential breach of Article 5 which can only be remedied by means of formal legal authorisation (the only option for which is currently by means of a welfare order from the Court of Protection for situations which fall outside of the DoLS framework).

According to one strand of Charles J’s reasoning in this judgement, mere knowledge through safeguarding and/or regulatory processes is not sufficient to render an objective deprivation of liberty imputable to the state and thus an Article 5 Deprivation of Liberty. However, if we follow the other strand of reasoning, that of the Bournewood gap, it is difficult to see how arbitrary detention can be protected against in cases where mere awareness is the limit of state involvement, and thus there is at least the potential for a future ruling that, as a result of the widened definition of deprivation of liberty created by Cheshire West, the positive obligation under Article 5 requires the state to provide a domestic regime of law, supervision and regulation to authorise even entirely private deprivation of liberty situations such as that in Re A & Re C [2010].

Councils and care providers would, therefore, be well advised to err on the side of caution and avoid assuming that they do not have to take steps to seek legal authorisation of a deprivation of liberty in even the most apparently “private” of circumstances once they are aware of their existence. Under the current circumstances of a massively overstretched system, this will not be immediately welcome news. However, the fundamental principle that all detention of those who lack the capacity to consent should be subject to independent scrutiny and review is very much to be welcomed. It can only be hoped that additional cases will add further to the pressure to resolve the current legislative and funding provisions to catch up to the modernisation of the law in this area by the courts.

The National Implementation Plan for Transforming Care, published recently, raises more questions than it answers about how the good intentions about closing hospital beds and improving community provision are going to be brought about in the real world. The jazzy PCP diagrams, co-produced “National Service Model” and graphs projecting falling inpatient numbers are aspirational, yes. But are they really going to produce change?

It seems to me that the key is whether community provision can be sufficiently improved to prevent admissions in the first place (as well as providing a viable discharge plan for those already there). So what’s the plan?

So long as this is truly rights-based and well implemented so far, so good.

But there, unfortunately, the good news comes to an abrupt end. Because all this good work is aimed at meeting the needs of “people with a learning disability and/or autism”. This term is used, without variation, throughout the report.

The report argues that “people with a learning disability and/or autism” are a “highly heterogeneous group” and that “Some will have a mental health problem which may result in them displaying behaviour that challenges. Some, often with severe learning disabilities, will display self-injurious or aggressive behaviour unrelated to any mental health condition. Some will display behaviour which can lead to contact with the criminal justice system.”

But never, not once, are autistic individuals referred to separately and distinctly. At no point is it considered which, if any, of the described issues or behaviours might be directly or indirectly related to autism itself and the relevance of that to effective behavioural prevention/management. At no point are autism and intellectual disability disentangled or dealt with separately.

Of course they can and do co-occur. But the behavioural issues which underlie the presence of these individuals in overly restrictive settings do not occur independently of whether or not an individual is autistic. Behaviour is communication. And autistic people communicate very differently.

It seems to me that no amount of person-centredness or positive approaches to behaviour are likely to make sustainable difference on the ground unless they are accompanied by vastly improved autism knowledge and understanding amongst those supporting those autistic individuals who make up a very substantial percentage of this group.

What percentage I hear you ask? I can’t tell you, because the statistics only count … yes, you guessed it … “people with a learning disability and/or autism”

Those local authorities working hard on implementing the Care Act know that section 4 says that
“A local authority must establish and maintain a service for providing people in its area with information and advice relating to care and support for adults and support for carers.”
Those who have read a little further into section 4 know that this service must provide information and advice across an extensive range of areas, including of course essential information about how the social care system under the Care Act operates in that local authority’s area (s.4(2)).

Having been in the room when several local authorities were struggling with working out how they might go about collecting and co-ordinating all the necessary information I am well aware that this is a demanding new requirement on local authorities. Many authorities have worked hard on innovative ways of drawing together information and have been disseminating their shiny new leaflets, posters, websites and other resources since the beginning of this year.

Not so everywhere however.

Just last month (4 months after the Care Act came into force) a client of one local authority was told that her care package was going to be reviewed and that a new assessment would be carried out under the Care Act. She had the temerity to ask for details of that authority’s assessment process under the Care Act.

The response she received (now framed for posterity on my wall) would seem to me to fall a little short of what the Care Act had in mind. Attached to a copy of her previous assessment, on a compliments slip bearing the local authority’s letterhead were the handwritten words:

Somewhere out there is a parallel universe. In that universe (let’s call it Universe B), laws work rather differently.

The Care Act is passed and councils are given information and some (admittedly limited) lead time to prepare to implement this new law before it comes into effect on 1st April 2015. Anyborough council is vaguely aware of these developments. But, in Universe B, where Anyborough council is located, laws are merely interesting suggestions and not really laws at all.

Anyborough council decides that it will review its ways of doing things, its policies and its forms in its own time and at a leisurely pace. After all, “coming into effect” just means that they could consider doing things differently at some time after April 2015. If they fancy it. When the right staff are in place. When policies come up for review on their internal rolling schedule. When someone digs the right piece of paper out of the bottom of the filing cabinet.

When clients mention the Care Act, Anyborough council staff look carefully at the council policies to see whether their council has decided to opt for that particular provision in their latest policy draft. Or not. Because, here in Universe B, Anyborough policies are absolute and must be abided by in all situations. So if an Anyborough policy and the Care Act should disagree, then clearly the law was merely an aspirational suggestion and not to be taken seriously. Whereas of course, council policy is the way the world works. Period.

Unfortunately for Anyborough council, the courts which judicially review the decisions of councils in Universe B exist in Universe A. In Universe A there is this rather funny idea called the Rule of Law. In Universe A, local councils have to abide by laws passed by the national parliament whether they like them or not. In Universe A, local councils are free to make policies and to exercise their discretion only as far as the law says they can. And in Universe A, laws come into effect when parliament decides they do.

Sooner or later, I fear, Anyborough council may have a rather traumatic experience when it finds Universe B colliding with the reality of Universe A. Perhaps it would be less traumatic for Anyborough Council to consider taking up ordinary residence, voluntarily, in Universe A, before that happens?

I have come across a case of a client being sent an invoice (and a demand for immediate payment) before the care planning process has been completed and before a financial assessment has been undertaken. This appears to be the usual practice of the council in question. The amount seems to be quite moderate. It could be argued that this is a nominal amount. And I can understand the rationale. Presumably, and understandably, the council’s intent is to make it clear to the client as early as possible that social care is a chargeable service and get them acquainted wth the idea of paying for it.

So far, so good. The difficulty is I can’t find a lawful basis for this under the Care Act!

If services are already in place at this pre-completion of the care plan stage (and they are in the case in point) then I can only see two potential scenarios.

(1) The services are being provided under s.19 powers to meet ‘urgent needs’. This is the most plausible legal basis for the service currently in place in this case since a positive eligibility determination has already been made. If this view is correct, then the power to charge for them comes from s.14. But the s.14 power is dependent on a financial assessment under s.17 and it is clear from the wording of s.17 (“thinks that it would charge“) that the financial assessment must be carried out in order to determine the level of charges before charges can actually be levied.

(2) The other possible view (though with less basis I think) would be to argue that the services are being provided as preventive services under s.2. There is a separate power under s.2 to charge for these services and use of this power does not require a financial assessment under s.17. So fine then? Well the problem is that Reg. 3(2) of the Prevention Regs requires that “(2) A charge must not reduce the income of the adult concerned below the amount specified in regulation 7 of the Care and Support (Charging and Assessment of Resources) Regulations 2014(A) (minimum income guaranteed amount).”. Given that no financial assessment has been carried out and no financial questions of any kind have been asked of the client to date, how can the council possibly know that the charges it is demanding would not reduce the adult’s income below the minimum income guarantee level? I cannot see how a council can get around this without carrying out some sort of financial assessment even to levy charges for a preventive service.

So, I sympathise with the rationale, but I think this approach may need some reworking. The trouble with invoicing people for charges without a statutory basis for making the charge is that there aren’t going to be any options, if clued-up people decline to pay.

Placements are often justified on the grounds that behaviour which challenges needs to be addressed before community living is possible. But for many autistics this is backwards! Behaviour is communicative. Common causes of behaviour which challenges, in autism, are frustration and distress, due to difficulties with:• communication• uncertainty and unpredictability• sensory issues

Most staff working in care have had little or no good quality autism training. “Behaviour management” typically focusses on reactive management and restraint techniques! It is little wonder that autistics stuck in these situations display distress in such an adverse environment. In institutions individuals are typically subjected to:• change with little or no warning• little control over their environment• a highly unsuitable sensory environment• constant interaction and demands• very limited access to people with whom they can communicate effectively (e.g. family) or appropriate support for communication (e.g. AAC technology)It is hardly surprising if this results in behaviour which challenges.

Effective training of community-based staff to enable them to actually understand and anticipate an autistic perspective is essential. We need to move away from ineffective and damaging “reward and sanction” reactive approaches to behaviour management. Creating workable community support is possible. It isn’t always cheaper immediately, but it is in the long run and this should be very motivating to local authorities and trusts. A good starting point is to look for providers who take an autistic perspective seriously and make use of the autistic community as a source of knowledge about how seeing the world from an autistic point of view can help enormously. Most behaviour which challenges can be prevented and avoided – but institutions are completely the wrong place to do it.

Community provision can work but only if it is staffed by sufficiently well trained and supported staff who have a clear and deep understanding of autism on a practical level. “Awareness” courses are not enough. Learning about the triad of impairments is not much use when faced with a distressed autistic who can’t use speech to tell you what’s wrong. The latest “products” on sale from the autism industry are also of very dubious value – check out first whether they are really as evidence based as they sound – there is a lot of “neuro”-rubbish being talked out there. Exercises to retrain developmentally immature reflexes are little help when faced with an autistic adult head-banging to the point of bleeding. Creating an autistic friendly environment, addressing communication, autonomy and sensory needs can be a good start to proactive behaviour management. But community staff need to have confidence in their skills and knowledge to be able to do that. It isn’t going to happen more widely until the entire social care sector begins to learn enough about autism to really understand that autism is a fundamentally different way of being and approach the needs of autistics with fewer assumptions and an openness to those different ways of thinking and being.

I’m aware of a few providers doing some fine work in this area, but we need more. We also need more willingness from local authorities to think outside of the box and consider bespoke packages with sufficient funding and support for training to ensure good quality PAs equipped with real world autism skills.

Welcome to my new guest blog on Belinda Schwehr’s ‘Schwehr on CARE’ and thanks to Belinda for inviting me.

I have to focus my first posts on what I see as the most pressing human rights issue in social care: the approximately 3,000 individuals (many and perhaps most of them autistic) still stuck inappropriately in long-stay inpatient care 4 years after Winterbourne View.

The Justice for LB campaign is seeking further legislation in an attempt to resolve the issue. Whilst I wholeheartedly support their aims, I can’t see the approach of passing more legislation working. Here’s why. We already have law which addresses many of the issues, but it is simply being ignored.

(1) There is still widespread failure properly to implement the Mental Capacity Act. Capacity is frequently assessed wrongly because:(a) unwise decisions made by someone with a learning disability or autism are used as a basis to assume or evidence lack of capacity;(b) insufficient information and support are provided. All practicable steps to help the individual make the decision themselves are not actually taken. This is particularly true in autism, where it is often due to ignorance of steps which could help; (c) incapacity is assumed, based on one-off assessments, sometimes years previously;(d) incapacity is assumed for one decision on the basis of incapacity in relation to another very different type of decision, without proper analysis of similarities or otherwise;(e) assessments are too often based on the outcome of language-based IQ tests and in ignorance of the evidence that these may well not be a reliable approach to measuring cognitive ability in autistics.

(2) The Care Act already provides strong rights to be involved for adults themselves and for family (either in the form of those the adult asks to be involved or in the form of best interests consultees). There are rights to communication support/interpreters and provision for this to be a familiar person where this is the only way to achieve communication in the case of bespoke methods of communication (including behaviour only). The statutory advocacy duties are right there and properly qualified, independent advocates are the best possible support that people could have. So what’s the problem?

In far too many areas it just isn’t being implemented. It’s hard not to conclude that either local authorities are (a) ignorant of the law; or (b) simply hoping like mad that nobody else noticed.What can we do about it?

(1) Know the law and push for independent advocacy when someone is entitled to it. Councils cannot lawfully assume that family members are suitable informal supporters and use their presence to avoid providing an independent advocate UNLESS both the adult needing support AND the family member CONSENT. Nor can they avoid advocacy by using family members or friends as informal support without THINKING about whether the informal person is actually able to carry out the role of supporting the adult’s involvement appropriately.

(2) Know the law and push for the provision of a communication specialist (as WELL as an advocate) where an individual communicates in a way that the assessor does not understand. This means those who communicate only through their behaviour, those who have echolalia, those who use PECS, AAC or bespoke systems. And THIS MEANS adults who may lack capacity – they have a legal right to be heard and to be involved too!

(3) Know the law and push for PROPER capacity assessments: decision specific and with all practicable assistance, including communication support, full information about all options and processing time.

(4) Know the law and push for fully lawful decision making where someone does lack capacity – in full compliance with the MCA. IMCAs, DOLS, best interests consultees (including family members and providers), proper respect for human rights and all the principles.

Having been wrestling with practitioners’ bemused questions about the state of play on Ordinary Residence over the past few months, I share Belinda’s relief at the common sense shown by the Supreme Court in finding Wiltshire liable.

This clarifies the situation in several ways which I think local authorities should find helpful in working out the liable council. As anyone who has been to CHL training will know, Annex H of the Care Act Guidance says that local authorities should: “start from a preliminary assumption that the young person remains ordinarily resident in the local authority in which the child was ordinarily resident when they turned 18.”

The decision helpfully clarifies that that starting assumption cannot be too readily displaced in the case of a young person who lacks the capacity to decide their own residence.

The Supreme Court has helpfully confirmed that:(1) An area cannot be someone’s ‘base’ without factoring in whether they do or have ever actually lived there(2) Ordinary Residence cannot be based on the residence of a decision maker (parent or deputy) rather than the subject themselvesAnd also sorted out that for those who lack capacity to make residence decisions:(3) Periods of out of area placement whilst a child are not enough by themselves to change ordinary residence, even where these are prolonged

Those of us who have spent months wrapping our brains around these issues are relieved by the clarity and coherence of this position. In many cases councils will find it easier to recognise when they should simply accept that they are responsible (though it remains to be seen whether all will do so in practice!). Councils and providers can heave huge sighs of relief and hopefully develop high quality, community based care, appropriate to the needs of individuals without fear of ‘dumping’.

This decision is hugely in the interests of young people who lack such capacity (many of them autistic). The clarity thus provided should cause local authorities who have such young people in their care to finally accept that they are, in most cases, going to continue to be responsible for them throughout their lives and to focus on the suitability of placements, rather than on which side of geographical borders they lie. It should very much improve transition planning for these young people – the fractured and frequently argumentative nature of which has often been a cause for concern.

The young people at the heart of these cases are not just costly burdens to be looked to for arbitrary savings in council budgets. They are people, not packages or exports to be fought over. I fear there are still O/R battles which remain to be fought through the courts, as Belinda highlights. But at least the outcome from this one is legally coherent and clear enough to sound a warning to councils about legally and ethically dubious attempts to export young people viewed as too costly.